What does marriage mean to you

Marriage for all: equal rights, equal obligations for homosexual and heterosexual couples

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Marriage for all: equal rights, equal obligations for homosexual and heterosexual couples


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Since October 1, 2017, same-sex couples have been able to get married in Germany. In "marriage for all" gays and lesbians receive the same rights and obligations as they exist in a marriage between a man and a woman. The guide reveals what changes with the equality of homosexual and heterosexual couples.

You should know these terms
term
Explanation
Joint account

An account with several owners, for example spouses and life partners, but also communities of heirs or business partners. There are two models with different power of disposal (and / or account).

Power of attorney

A declaration by which another person is commissioned to act on behalf of the client, to make decisions or to conclude contracts. The health care proxy only applies if you are no longer able to do the above yourself. It presupposes an unconditional and unreserved personal trust.

Spouse splitting

A method of calculating the tax burden of married couples and registered partnerships. In the splitting procedure, the individual income of the partner who earns above average is offset against the (mostly lower) income of the other partner.

It was a historic day for gays and lesbians in Germany: Am June 30, 2017 the German Bundestag voted that even same-sex couples marry civilly may - and thus receive the same rights and obligations that previously only heterosexual married couples were entitled to. 623 votes were cast; the majority (393 votes) approved the proposed amendment to Section 1353 of the German Civil Code (BGB).

In paragraph 1 sentence 1 it was previously said: "The marriage is concluded for life." The current formulation is: "Two people of the same or different sexes marry for life." The law passed the Federal Council on July 7, 2017, and Federal President Frank-Walter Steinmeier signed it on July 20, 2017. A week later, it was announced in the Federal Law Gazette.

“Marriage for All” has been in force since October 1st, 2017.

Since October 1, 2017, marriage applies to everyone. But that also means that since that day the Registration of civil partnerships is no longer possible is. However, previous civil partnerships are not automatically converted into a marriage. The conversion must take place at the registry office - a new appointment is therefore necessary. However, the equality of rights and obligations of the (new) spouses takes place retrospectively up to the date on which the civil partnership was registered. However, there is no obligation to convert the registered civil partnership into a same-sex marriage.


According to experts, a change in the law is constitutional

Already in the Coalition talks, the CDU, CSU and SPD after the federal elections in 2013 it was agreed that the legal disadvantages for people in registered civil partnerships should be abolished. The so-called "gay marriage" had been possible in Germany since 2001, but the scope of the rights and obligations associated with it still differed significantly from those in a marriage between a man and a woman. The subject was given in several committees and discussed further here. After the surprising opening of civil marriage for same-sex partners in (after all Catholic) Ireland in the year In 2015 the public discussion picked up speed again. Various judgments by the Federal Constitutional Court and the European Court of Justice had also strengthened the rights of gays and lesbians in the meantime.

In June 2017, Bündnis 90 / Die Grünen as well as the FDP and the SPD made a corresponding change in the law Condition for a coalition after the 2017 federal election. At the end of the same month, the political decision-making process took on an unexpected dynamic. During one Panel discussion said Chancellor Angela Merkel that one should resolve the issue of 'marriage for all' "in the direction of a decision of conscience". With the help of votes from the Left Party and Alliance 90 / The Greens, the co-ruling SPD forced a swift decision on the necessary change in the law. That made for violent dispute in the governing coalition. Contrary to the will of the Union parties, the vote was scheduled for the current week of the Bundestag session. Friday, June 30th, was the last day of the meeting before the summer break - and the general election. The Chancellor lifted the parliamentary group requirement for the members of the CDU and CSU. But she herself voted against the change in the law.

Political party
AdvocatesopponentAbstentions
CDU / CSU

75

225

4

SPD

192

0

0

The left

63

0

0

Green

63

0

0

Non-attached

0

1

0

total

393

226

4

63,1 %36,3 %0,6 %
  • Result of the Bundestag vote on June 30, 2017

After the decision of the Bundestag some politicians and lawyers expressed their opinion concerns, the Redefinition of the concept of marriage may not be constitutional. Lawsuits before the Federal Constitutional Court were also considered. Among other things, the Free State of Bavaria announced a detailed legal review. The subject of discussion is the question of whether the Basic Law only places marriage between men and women under the “special protection of the state” (Article 6, Paragraph 1). The great majority of constitutional lawyers and legal expertswho were questioned by the Bundestag in preparation for the vote, is of the opinion that the Basic Law here do not grant any special privilege. Therefore the amendment of the BGB is sufficient.


Adoption Rights

The biggest change in marriage for everyone concerns the law of adoption. So far, the two partners in a registered civil partnership have only been able to adopt a child individually and one after the other. The so-called Successional adoption stipulated that one partner had to adopt a strange child as their own before the other was allowed to adopt the child as well. Accordingly, both had to go through the elaborate adoption process for themselves. With the Change of law for marriage for all it is now also possible for homosexual couples to together - actually with each other and at the same time - adopting a child.

Stepchild adoption

Since 2005, stepchild adoption has been permitted for registered civil partnerships. That means: If one partner already has a biological child, the other partner can adopt it as a stepchild. This gives the stepmother or father the same rights and obligations as the birth parents. These include, for example, full custody, maintenance obligations or statutory inheritance law. In addition, the family name is now entered as the child's maiden name. The decision to have a stepchild is made for life - as a rule, it cannot be reversed. At the same time, with the adoption, all legal relationships with the other biological parent and their relatives expire.

Before a stepchild adoption is possible, several must requirements be fulfilled. For example, adoption must be in the child's best interests. This is monitored by both the responsible youth welfare office and the supervising family court. For example, it is necessary that the person willing to adopt has lived with the child for a certain period of time. A certain mandatory period for this “care leave” is not prescribed, but it should be “appropriate” so that a parent-child relationship can develop.

The Youth Welfare Office makes house calls in the run-up to adoption and has intensive discussions with parents and children. But it is also required that both birth parents have to agree to the adoption - even if the other parent does not have custody. From the 14th birthday you have to do that too child consent to the adoption. They should also be aware of the changes, not least because the family court can question the child about stepparenthood during the hearing.

Difficulty for homosexual women

For women who live in a registered civil partnership, a decision by the Federal Court of Justice in 2015 made stepchild adoption more difficult on one point: Is the child through a private sperm donation has been conceived, the biological father must in any case be his Consent to Adoption give. This is to ensure that the producer does not really value paternity. In the case of anonymous sperm donation, on the other hand, this is not necessary because the family courts assume that there is no personal connection between mother and father and that the donor is not interested in the role of father.

This also applies to the new “marriage for all” Partner not automatically as "co-mother"if the child is born in marriage. Here, too, the common adoption of children is, as before, only via stepchild adoption. A government commission - the “Working Group on Descent” - put in a few days after the decision in the Bundestag Recommendation on the reform of the law of parentage in front. It was suggested that the second parenting position for married lesbian women could also be filled by the “co-mother” if the child was born into marriage. However, legal equality of homosexual and heterosexual couples on this point is only to be expected in the 2017–2021 legislative period.


Tax treatment

In terms of taxation, same-sex partnerships and marriage between men and women have been treated equally since 2013. The Federal Constitutional Court ruled that the unequal treatment of spouses and civil partners on this point was unconstitutional. That meant that, according to the ruling of the chief judge, homosexual couples were the tax advantageswhich until then were reserved exclusively for married couples. The constitutional judges instructed the legislature to pass the Income Tax Act retroactive to August 1, 2001 (at this point in time the same-sex civil partnership had been introduced).

Since 2013, registered civil partnerships have also been able to do that Spouse splitting use for yourself. In this procedure, a married couple is treated differently for tax purposes than, for example, two individuals who live together. The approach of splitting, which was introduced in 1958, is to understand two spouses as an economic unit and to tax what makes sense there where both spouses are in different proportions to the total income. Spouse splitting works as follows:

  1. The taxable income of both partners is added together and halved.
  2. The tax office calculates the income tax due on the basis of the halved amount.
  3. This amount will be doubled.

The splitting tariff brings tax advantages especially for couples where the partners earn different amounts. The greater the difference, the more pronounced the benefit is. The partner with the higher income would normally be burdened disproportionately due to the income tax table. In the case of spouse splitting, on the other hand, the income of both partners is taxed at the same rate, which reduces the tax burden for the higher-income earner compared to an individual assessment.

Due to the ruling of the Federal Constitutional Court, persons in registered civil partnerships could also Benefit retrospectively from the splitting tariff. Previously assessed individually, they could now apply to the tax office for a joint assessment from the time the partnership was registered. This resulted in tax refunds, but only under certain conditions - if, for example, the submission of the tax return was not yet time barred (period: four years) or the tax assessment of a partner was not yet legally valid (in technical jargon: "open"). Otherwise, no tax benefits could be claimed retrospectively.


Common bank accounts

Even before the legal reform, homosexual couples had the option of keeping a joint account; likewise unmarried heterosexual couples. But with the marriage, the so-called joint account takes on a new meaning for newly married people: It signals that both spouses are now the common expenses - for example for rent, standard of living or vacation - also shoulder together want.

However, most couples are unlikely to give up their previously existing individual accounts, but rather they will probably set up an additional, jointly managed "household account" to. The rent payments, fuel costs, food costs, insurance premiums, etc. are then deducted from this. How the credit is composed is of course decided by each couple for themselves. With some couples, each partner transfers the same amount, with others the payment is calculated proportionally according to the salary.

There are basically two options for joint accounts:

  • And account: With this form, transactions are only possible if both account holders agree. The spouses have to coordinate transfers or payouts, for example; one person alone cannot decide. An AND account is best used as a rental account or for other fixed debits. It is hardly suitable for everyday use: According to Stiftung Warentest, such accounts are therefore never issued with an EC or credit card.
  • Or account: With this form, each owner may have sole control of the account. Regardless of whether you want to withdraw money, pay an invoice by bank transfer or set up a new standing order - mutual coordination is not necessary beforehand. It is also up to the individual to decide whether and to what extent an overdraft facility is used. However, no spouse may conclude a credit agreement on the account or issue a power of attorney for the account - this is only possible with the prior consent of the other partner.

The Oder account is due to the greater suitability for everyday use the more common form. Only a few banks still offer the AND account at all. Occasionally it is used by associations that want to better prevent abuse by requiring double signatures. Even in the event of the death of a spouse, the And account is associated with a high administrative burden, because the surviving spouse may then only carry out all transactions with the approval of the heirs (community).

Shared responsibility and joint liability

There are also some general conditions to consider for Oder accounts. While it is practical if every partner can have access to the account, this advantage can quickly turn into a disadvantage if one partner tends to "go it alone". Big withdrawals or even that Slipping into the dispo the other partner may not even notice it some time later. The situation is even more problematic if one of the two account holders owes money to a third party. This can then also do that Have the joint account seized. Then no one can get hold of the common money.

In addition the other partner is always liable for overdrafts - in full. As consumer advocates explain, banks then usually do not necessarily turn to the person who caused the debt, but to the person who the relevant credit institution assumes that he (or she) is most likely to be able to repay the debt. There is also no provision for credit balances as to whether half of the money belongs to both partners. The couple has to sort that out themselves.

In addition to current accounts, all financial investments such as savings books or securities accounts can also be managed jointly. The corresponding regulations also apply here.


Living will

Marriage for everyone stands for security and security, regardless of the gender of the spouses. Nonetheless, after a marriage it arises no "legal power of attorney", as it is called in legal jargon. This means: In emergency situations - for example after a serious accident or a stroke - the spouse may not automatically make medically relevant decisions for the other.

The following applies to adults: Others may only determine for (and over) them if a valid one Power of attorney present or a court a legal guardian ordered. This also applies in emergencies. Even here it exists no right of emergency representation by spouses or registered partners. In medical emergencies, it can happen that one spouse cannot make a decision (for example, because they are unconscious or in a coma) and the other spouse is not allowed to. Difficult decisions - for example, which examinations are still to be carried out or whether an operation should be carried out - are then left to the treating doctor alone.

In a living will, each spouse or partner regulates in advance which forms of treatment they want and which they refuse. The more specific the advance directive is, the better: In this way, doctors and authorized representatives can orientate themselves in the specific situation on the wishes of the patient. The The will of the patient is binding for the doctor; even if he may find a particular life-saving measure appropriate, he must not use it if it contradicts the patient's wishes.

Doctors generally have a duty of confidentiality towards third parties. This also applies to spouses and life partners as well as other close relatives. The attending physician may only provide the relatives with comprehensive information in exceptional cases - unless he has previously been released from the obligation of confidentiality in the context of the living will.

What does an advance directive look like?

The living will has certain formal requirements enough for it to take effect. According to the case law of the Federal Court of Justice Treatment situations described as concretely as possible also with the medical measures must be determined which are desired and which ones don't. Since illnesses can take different courses and not everything is predictable, the living will of course cannot and does not have to regulate everything down to the last detail. Nevertheless, according to the recommendation of the Federal Ministry of Justice and Consumer Protection a number of points that must be taken into account in the living will:

1. Input formula

2. Situations in which the living will should apply

3. Determination of medical / nursing measures, in particular:

- life support measures

- Treatment of pain and symptoms

- artificial nutrition and hydration
- Revival
- artificial respiration
Dialysis
- Use of antibiotics
- transfusion of blood / blood components

4. Requests for location and company

5. Notes on further precautionary directives

6. Reference to the explanations attached to the living will

7. Declaration on organ donation

8. Closing formula

9. Closing remarks

10. Date, signature

11. Update (s), date, signature

12. Appendix: moral concepts